Escape from the Constitution

Andrew L. Urban

Now that the Constitution has been breached with impunity by several Premiers with decisions that play well to their panic stricken voters in the Time of Covid, we should be prepared for more such vote catching breaches. Same modus operandi, same self serving, cynical path to popularity, same economic vandalism, private pain and family dislocation … and a trashed Constitution.

A brutal murderer has escaped from the Lithgow maximum security prison 152 kms west of Sydney in the Blue Mountains region. A massive police hunt fails to find him for two days. The Queensland Premier announces the closure of the border with NSW, on the advice of the State’s Police Commissioner, “to keep Queenslanders safe” until the murderer is apprehended. Bold action. Strong leadership. A woman in the State’s south swoons with relief.

The hunt continues, with the escaped murderer still on the run. It is revealed by prison authorities that the murderer escaped from the prison’s hospital, where he was being treated for a heavy cold. Victoria’s Premier follows Queensland’s lead and closes its border with NSW “to keep Victorians safe.” A Melbourne journalist at the press conference stands up and applauds enthusiastically.

At a crowded press conference some months before the next State election, South Australia’s Premier announces the immediate closure of all its borders “while this vicious, infectious killer is on the loose somewhere in Australia”.

West Australia’s Premier tells the media that this is another threat from the careless eastern half of the country, bans all domestic flights into WA and closes its borders. “We intend to keep Western Australians safe from a wild killer on the loose…”

Prime Minister Worrisome calls for calm, his press conference coming just hours after Tasmania’s Premier holds a media briefing to announce the 2022 election date – and that with all these borders closed, the escaped murderer, “this diseased maniac” would have nowhere to go – except Tasmania. The Premier accepts the advice of the State’s top cop and top health officer who jointly tell the Premier to close access to the island that is Tasmania, ban all domestic flights and issue an emergency order to authorise citizen patrols of the coastline.

Northern Territory’s Chief Minister requests ADF assistance from the Federal Government to help patrol its extensive borders, now closed. “We have a responsibility to ensure that external dangers do not threaten our Territory.”

By their statements and acts, the Premiers escalate the gravity of the risk – the risk from outside their borders – and turbo charge the panic. Once voters are scared enough, the Premiers are saviours, never mind the collateral damage of their policy decisions. The virus template is in place.

Possibly the Biggest Loser is Australia’s Constitution, which the Federal Government and even the High Court failed to protect when they had the chance.

Mining magnate Clive Palmer challenged WA’s border closure. The question put to the High Court was whether Western Australia’s Emergency Management Act and the directions to close the border in light of the coronavirus pandemic breached section 92 of the Constitution.

Palmer’s lawyers told the High Court the closure did breach section 92, which guarantees movement between states. ” … intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”

But the West Australian Government told the court the closure was justified because they were reasonable and necessary to stop the spread of COVID-19 in the state. In early November, the High Court said it had found the Act complied with the Constitution. The Federal Government had originally joined Palmer but then withdrew from the challenge.

The High Court seems just as uninformed and panicked as the rest of the cowering community about this virus – despite mountains of credible medical research that has accumulated all this year. For example, did the High Court consider that over 99% of those infected experience it in mild form and recover? That medical fact alone questions the validity of closing a State’s border as a precaution when that decision causes massive dislocation and damage to businesses and families. Border closures are out of all proportion to the risk.

In Cunliffe v The Commonwealth (1994), Mason CJ said:

“… a law which in terms applies to movement across a border and imposes a burden or restriction is invalid. But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject-matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end. Once again, it would be a matter of weighing the competing public interests.”

Is the High Court decision proportionate? Did it consider competing public interests? Did the court know that in 2019, 217,000 were diagnosed and over 430 had died by the middle the year – of the flu?

It has set the threat bar very low. Queensland stretched its border closure policy to absurd lengths; then it petulantly closed its NSW border – but just to Sydneysiders, an egregious breach of the Constitution.

In effect, the premiers have weaponised the corona virus as a tool for electioneering. Anytime there is an election looming, a premier can identify and magnify a threat of some sort (or a new cluster of corona virus cases) outside their state and employ the closed border strategy to gain favour among voters. It may be cynical and it would be unconstitutional but hell, it’s politics … maaate!

In a conversation with Professor David Flint over a lunch with other Spectator Australia writers recently, I asked this constitutional scholar how and by whom can elements of the Constitution be enforced – in the event that the High Court found a State has breached it. The chilling answer was that if a Premier refused to lift the border closure, nothing could be done … unless the army was called in … but who would do that? So the bottom line is that the Constitution is no longer respected. Not by Premiers, not by the High Court, not by the Federal Government

As Flint wrote in the Spectator Australia (Nov 7, 2020) ” What was truly appalling this year was than not one of the checks and balances we rely on to protect us from any rampant Mussolini class actually worked.” Not even the Constitution.

(This article is also published in Spectator Australia.)

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